International Law. A Treatise Volume Ii Part 32

[Footnote 445: During the Franco-German War the Germans granted these most favourable conditions to the French forces that surrendered Belfort on February 15, 1871.]

[Sidenote: Form of Capitulations.]

-- 228. No rule of International Law exists regarding the form of capitulations, which may, therefore, be concluded either orally or in writing. But they are usually concluded in writing. Negotiations for surrender, from whichever side they emanate, are usually sent under a flag of truce, but a force which is ready to surrender without special conditions can indicate their intention by hoisting a white flag as a signal that they abandon all and every resistance. The question whether the enemy must at once cease firing and accept the surrender, is to be answered in the affirmative, provided he is certain that the white flag was hoisted by order or with the authority of the commander of the respective force. As, however, such hoisting may well have taken place without the authority of the commander and may, therefore, be disowned by the latter, no duty exists for the enemy to cease his attack until he is convinced that the white flag really indicates the intention of the commander to surrender.

[Sidenote: Competence to conclude Capitulations.]

-- 229. The competence to conclude capitulations is vested in the commanders of the forces opposing each other. Capitulations entered into by unauthorised subordinate officers may, therefore, be disowned by the commander concerned without breach of faith. As regards special conditions of capitulations, it must be particularly noted that the competence of a commander to grant them is limited[446] to those the fulfilment of which depends entirely upon the forces under his command.

If he grants conditions against his instructions, his superiors may disown such conditions. And the same is valid if he grants conditions the fulfilment of which depends upon forces other than his own and upon superior officers. The capitulation in El Arish[447] on January 24, 1800, arranged between the French General Kleber and the Turkish Grand Vizier, and approved by the British Admiral, Sir Sidney Smith, presents an ill.u.s.trative example of this rule. As General Kleber, who was commanding the French army in Egypt, thought that he could not remain in Egypt, he proposed surrender under the condition that his army should be safely transported to France, carrying away their arms and baggage. The Grand Vizier accepted these conditions. The British Admiral, Sir Sidney Smith, who approved of these conditions, was the local commander on the coast of Egypt, but was an officer inferior to Lord Keith, the commander of the British Mediterranean fleet. The latter had, on January 8, 1800, received secret orders, dated December 15, 1799, from the British Government instructing him not to agree to any capitulation which stipulated the free return of Kleber's army to France. Sir Sidney Smith did not, however, receive instructions based on these orders until February 22, 1800, and, therefore, when he approved of the capitulation of El Arish in January, was not aware that he acted against orders of the British Government.[448] Lord Keith, after having received the above orders on January 8, 1800, wrote at once to General Kleber, pointing out that he was not allowed to grant the return of the French army to France.[449] On the other hand, the British Government, after having been informed that Sir Sidney Smith had approved of the return of the French army, sent, on March 28, 1800, fresh orders[450] to Lord Keith, received by him at the end of April, advising him, although Sir Sidney Smith had exceeded his competence, to allow the capitulation to be carried out and the French army to be safely transported to France.

Meanwhile, however, circ.u.mstances had entirely changed. When General Kleber had on March 17, 1800, received Lord Keith's letter of January 8, he addressed a proclamation,[451] in which Lord Keith's letter was embodied, to his troops asking them to prepare themselves for battle and actually began hostilities again on March 20. He was a.s.sa.s.sinated on June 14, and General Menou took over the command, and it was the latter who received, on June 20, 1800, information of the changed att.i.tude of the British Government regarding the capitulation of El Arish.

Hostilities having been renewed as far back as March, General Menou refused,[452] on his part, to consent to the carrying out of the capitulation, and continued hostilities.

[Footnote 446: See U.S. Naval War Code, article 51.]

[Footnote 447: Martens, _R._ VII. p. 1.]

[Footnote 448: Martens, _R._ VII. pp. 8 and 9.]

[Footnote 449: Martens, _R._ VII. p. 10.]

[Footnote 450: Martens, _R._ VII. p. 11.]

[Footnote 451: Martens, _R._ VII. p. 15.]

[Footnote 452: Martens, _R._ VII. p. 16.]

It is obvious that Sir Sidney Smith, in approving the capitulation, granted a condition which did not depend entirely upon himself and the forces under him, but which depended upon Lord Keith and his fleet. Lord Keith as well as the British Government could have lawfully disowned this condition. That the British Government did not do so, but was ready to ratify Sir Sidney Smith's approval, was due to the fact that it did not want to disavow the promises of Sir Sidney Smith, who was not at the time aware of the orders of his Government to Lord Keith. On the other hand, the French Generals were not wrong in resuming hostilities after having received Lord Keith's first information, as thereby the capitulation fell to the ground.

[Sidenote: Violation of Capitulations.]

-- 230. That capitulations must be scrupulously adhered to is an old customary rule, now enacted by article 35 of the Hague Regulations. Any act contrary to a capitulation would const.i.tute an international delinquency if ordered by the belligerent Government concerned, and a war crime if committed without such order. Such violation may be met with reprisals or punishment of the offenders as war criminals.

VI

ARMISTICES

Grotius, III. c. 21, ---- 1-13, c. 22, -- 8--Pufendorf, VIII. c. 7, ---- 3-12--Vattel, III. ---- 233-260--Hall, -- 192--Lawrence, -- 216--Westlake, p. 82--Phillimore, III. ---- 116-121--Halleck, II.

pp. 311-319--Moore, VII. -- 1162--Taylor, ---- 513 and 516--Wheaton, ---- 400-404--Bluntschli, ---- 688-699--Heffter, -- 142--Lueder in Holtzendorff, IV. pp. 531-544--Ullmann, -- 186--Bonfils, Nos.

1248-1258--Despagnet, Nos. 563-566--Pradier-Fodere, VII. Nos.

2889-2918--Rivier, II. pp. 362-368--Nys, III. pp. 518-520--Calvo, IV. ---- 2433-2449--Fiore, III. Nos. 1484-1494, and Code, Nos.

1750-1763--Martens, II. -- 127--Longuet, ---- 145-149--Merignhac, pp.

230-239--Pillet, pp. 364-370--Zorn. pp. 201-206--Bordwell, p.

291--Meurer, II. ---- 43-44--Spaight, pp. 232-248--_Kriegsbrauch_, pp. 41-44--Holland, _War_, Nos. 93-99--_Land Warfare_, ---- 256-300.

[Sidenote: Character and Kinds of Armistices.]

-- 231. Armistices or truces, in the wider sense of the term, are all agreements between belligerent forces for a temporary cessation of hostilities. They are in no wise to be compared with peace, and ought not to be called temporary peace, because the condition of war remains between the belligerents themselves, and between the belligerents and neutrals on all points beyond the mere cessation of hostilities. In spite of such cessation the right of visit and search over neutral merchantmen therefore remains intact, as does likewise the right to capture neutral vessels attempting to break a blockade, and the right to seize contraband of war. However, although all armistices are essentially alike in so far as they consist of cessation of hostilities, three different kinds must be distinguished--namely, (1) suspensions of arms, (2) general armistices, and (3) partial armistices.[453] It must be emphasised that the Hague Regulations deal with armistices in articles 36 to 41 very incompletely, so that the gaps need filling up from old customary rules.

[Footnote 453: Although, as will be seen from the following sections, this distinction is absolutely necessary, it is not made by several publicists. Holland, _War_, No. 93, even says: "There is no difference of meaning, according to British usage at least, between a 'truce,' an 'armistice,' and a 'suspension of arms.'" _Land Warfare_, -- 256--see in especial note (_a_)--accepts the distinction as indispensable.]

[Sidenote: Suspensions of Arms.]

-- 232. Suspensions of arms, in contradistinction to armistices in the narrower sense of the term, are such cessations of hostilities as are agreed upon between large or small military or naval forces for a very short time and regarding momentary and local military purposes only.

Such purposes may be--collection of the wounded; burial of the dead; negotiation regarding surrender or evacuation of a defended place, or regarding an armistice in the narrower sense of the term; but may also be the creation of a possibility for a commander to ask for and receive instructions from a superior authority,[454] and the like. Suspensions of arms have nothing to do with political purposes, or with the war generally, since they are of momentary and local importance only. They concern exclusively those forces and that spot which are the object of the suspension of arms. The Hague Regulations do not specially mention suspensions of arms, since article 37 speaks of local armistices only, apparently comprising suspensions of arms among local armistices.

[Footnote 454: An instructive example of a suspension of arms for such purposes is furnished by the Convention between the German forces besieging Belfort and the French forces holding this fortress during the Franco-German War, signed on February 13, 1871; see Martens, _N.R.G._ XIX. p. 646.]

[Sidenote: General Armistices.]

-- 233. A general armistice is such a cessation of hostilities as, in contradistinction to suspensions of arms with their momentary and local military purposes, is agreed upon between belligerents for the whole of their forces and the whole region of war. General armistices are always conventions of vital political importance affecting the whole of the war. They are as a rule, although not necessarily, concluded for a political purpose. It may be that negotiations of peace have ripened so far that the end of the war is in sight and that, therefore, military operations appear superfluous; or that the forces of either belligerent are exhausted and need rest; or that the belligerents have to face domestic difficulties, the settlement of which is more pressing than the continuation of the war; or any other political purpose. Thus article 2 of the general armistice agreed upon at the end of the Franco-German War on January 28, 1871,[455] expressly declared the purpose of the armistice to be the creation of the possibility for the French Government to convoke a Parliamentary a.s.sembly which could determine whether or not the war was to be continued or what conditions of peace should be accepted.

[Footnote 455: Martens, _N.R.G._ XIX. p. 626.]

It is of importance to note that, for particular reasons, small parts of the belligerent forces and small parts of the theatre of war may be specially excluded without detracting from the general character of the armistice, provided the bulk of the forces and the greater part of the region of war are included. Thus, article 1 of the above-mentioned general armistice at the end of the Franco-German war specially excluded all military operations in the Departements du Doubs, du Jura, de la Cote d'Or, and likewise the siege of Belfort. It should also be mentioned that in the practice of belligerents the terms "suspension of arms" and "general armistice" are sometimes not sufficiently distinguished, but are interchangeable. Thus, for instance, the above-mentioned general armistice between France and Germany is ent.i.tled "Convention entre l'Allemagne et la France pour la suspension des hostilites, ..." whereas the different articles of the Convention always speak correctly of an armistice, and whereas, further, an annexe to the Convention signed on January 29 is ent.i.tled[456] "Annexe a la Convention d'armistice."

[Footnote 456: Martens, _N.R.G._ XIX. p. 636.]

[Sidenote: Partial Armistices.]

-- 234. Partial armistices are agreements for cessations of hostilities which are not concluded by belligerents for their whole forces and the whole region of war, but do not merely serve, like suspensions of arms, momentary and local military purposes. They are armistices concluded by belligerents for a considerable part of their forces and front; they are always of political importance affecting the war in general; and they are very often, although they need not be, agreed upon for political purposes. Article 37 of the Hague Regulations apparently includes partial armistices together with suspensions of arms under the term "local" armistices. A partial armistice may be concluded for the military or the naval forces only; for cessation of hostilities in the colonies only; for cessation of hostilities between two of the belligerents in case more than two are parties to the war, and the like.

But it is always a condition that a considerable part of the forces and region of war must be included, and that the purpose is not only a momentary one.

[Sidenote: Competence to conclude Armistices.]

-- 235. As regards the competence to conclude armistices, a distinction is necessary between suspensions of arms and general and partial armistices.

(1) Since the character and purpose of suspensions of arms are military, local, and momentary only, every commander is supposed to be competent to agree upon a suspension of arms, and no ratification on the part of superior officers or other authorities is required. Even commanders of the smallest opposing detachments may arrange a suspension of arms.

(2) On the other hand, since general armistices are of vital political importance, only the belligerent Governments themselves or their commanders-in-chief are competent to conclude them, and ratification, whether specially stipulated or not, is necessary. Should a commander-in-chief conclude a general armistice which would not find ratification, hostilities may at once be recommenced without breach of faith, it being a matter of common knowledge that a commander-in-chief is not authorised to agree upon exclusion of ratification, unless he received special powers thereto.

(3) Partial armistices may be concluded by the commanders-in-chief of the respective forces, and ratification is not necessary, unless specially stipulated; the commanders being responsible to their own Governments in case they agree upon a partial armistice without being specially authorised thereto.

[Sidenote: Form of Armistices.]

-- 236. No legal rule exists regarding the form of armistices, which may therefore be concluded either orally or in writing. However, the importance of general as well as partial armistices makes it advisable to conclude them by signing written doc.u.ments containing all items which have been agreed upon. No instance is known of a general or partial armistice of modern times concluded otherwise than in writing. But suspensions of arms are often only orally concluded.

[Sidenote: Contents of Armistices.]

-- 237. That hostilities must cease is the obvious content of all kinds of armistices. Usually, although not at all necessarily, the parties embody special conditions in the agreement inst.i.tuting an armistice. If and so far as this has not been done, the import of armistices is for some parts much controverted. Everybody agrees that belligerents during an armistice may, outside the line where the forces face each other, do everything and anything they like regarding defence and preparation of offence; for instance, they may manufacture and import munitions and guns, drill recruits, build fortresses, concentrate or withdraw troops.

But no unanimity exists regarding such acts as must be left undone or may be done within the very line where the belligerent forces face each other. The majority of writers, led by Vattel (III. -- 245), maintain that in the absence of special stipulations it is essentially implied in an armistice that within such line no alteration of the _status quo_ shall take place which the other party, were it not for the armistice, could by application of force, for instance by a cannonade or by some other means, prevent from taking place. These writers consider it a breach of faith for a belligerent to make such alterations under the protection of the armistice. On the other hand, a small minority of writers, but led by Grotius (III. c. 21, -- 7) and Pufendorf (VIII. 7, -- 7), a.s.sert that cessation of hostilities and of further advance only are essentially implied in an armistice; all other acts, such as strengthening of positions by concentration of more troops on the spot, erection and strengthening of defences, repairing of breaches of besieged fortresses, withdrawing of troops, making of fresh batteries on the part of besiegers without advancing, and the like, being allowed. As the Hague Regulations do not mention the matter, the controversy still remains unsettled. I believe the opinion of the minority to be correct, since an armistice does not mean anything else than a cessation of actual hostilities, and it is for the parties who agree upon an armistice to stipulate such special conditions as they think necessary or convenient. This applies particularly to the other controversial questions as to revictualling of besieged places and as to intercourse, commercial and otherwise, of the inhabitants of the region where actual fighting was going on before the armistice. As regards revictualling, it has been correctly maintained that, if it were not allowed, the position of the besieged forces would thereby be weakened by the action of the armistice. But I cannot see why this should be an argument to hold revictualling permissible. The principle _vigilantibus jura sunt scripta_ applies to armistices as well as to all other legal transactions. It is for the parties to prepare such arrangements as really suit their needs and wants. Thus, during the Franco-German War an armistice for twenty-five days proposed in November 1870 fell to the ground on the Germans refusing to grant the revictualling of Paris.[457]

It seems to be the intention of the Hague Regulations that the parties should always stipulate those special conditions which they need.

Article 39 p.r.o.nounces this intention regarding intercourse, commercial and otherwise, during armistices, by the following words:--"It is for the contracting parties to settle in the terms of the armistice what communications may be held within the theatre of war with the population and with each other."

[Footnote 457: See Pradier-Fodere, VII. No. 2908, where the question of revictualling during an armistice is discussed at some length, and the opinions of many publicists from Grotius to our own days are quoted.]

It must be specially mentioned that for the purpose of preventing the outbreak of hostilities during an armistice it is usual to agree upon so-called lines of demarcation[458]--that is, a small neutral zone between the forces facing each other which must not be entered by members of either force. But such lines of demarcation do not exist, if they are not specially stipulated by the armistice concerned.